IMPORTANT POINT
Bail – Accused can be released on bail when there is no adverse report about conduct of accused while he was out on interim bail.

JUDGMENT :

A.S. BOPANNA, J.

1. Leave granted.

2. The appellant is Accused No. 10 in connection with NIA RC 01/2021/NIA/MUM (NIA Special Case No. 1090/2021) registered for the alleged offences punishable under Sections 120B, 201, 302, 364 and 403 of the Indian Penal Code (‘IPC’ for short), Section 25 of the Arms Act and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 2004 (‘UAPA’ for short). In respect of the said proceedings the appellant who was arrested on 17.06.2021 had filed an application under Section 439 of CrPC before the learned Special Court Greater Mumbai for grant of bail. The learned Judge through the order dated 16.02.2022 had rejected the prayer for bail.

3. The appellant was before the High Court of Judicature at Bombay in Criminal Appeal No. 258 of 2022 assailing the said order dated 16.02.2022 passed by the Special Court. The High Court having adverted to the details of the contentions has dismissed the appeal holding that it is not a fit case to enlarge the appellant on bail. It is in that circumstance the appellant is before this Court in this appeal.

4. Heard Shri Mukul Rohtagi and Shri Siddharth Dave learned senior counsel for the appellant, Shri S.V. Raju learned Additional Solicitor General for the respondents and perused the appeal papers.

5. The specific facts need not be brought out in detail and overburden this order in as much the High Court has referred to the allegations, more particularly with regard to the case of the prosecution sought to be made out against the appellant herein. Further during the course of the arguments, the learned senior counsel for the appellant as also the learned Additional Solicitor General has referred to the relevant portions of the order as also the material available on record. However, the details relevant for the limited purpose of consideration of the bail application is alone noticed.

6. The case of the prosecution put forth is that the appellant who is a retired police officer, in connivance with Sachin Waze another senior police officer had planted gelatin sticks in a Scorpio Vehicle near the residence of a prominent businessman. In that regard, apart from referring to the role of Sachin Waze who is alleged to have also conspired with Mansukh Hiren to park this Scorpio Vehicle, the allegation is also that the appellant had a role with Sachin Waze in the murder of Mansukh Hiren. It is in that background, the charge as alleged is made against the appellant herein.

7. In the backdrop of the allegation, the High Court while taking note of the circumstance alleged to connect the appellant pertaining the offence wherein the gelatin sticks were laid in the Scorpio vehicle has prima facie arrived at the conclusion that it is a feeble attempt made to connect the appellant with Sachin Waze in that regard, only when the court questioned the NIA as to with whom Sachin Waze had conspired in planting of gelatin sticks in the Scorpio vehicle. With the further observation in that regard, High Court has noted that the charge sheet does not prima facie disclose that the appellant was involved in the conspiracy of planting gelatin sticks in the Scorpio vehicle. Hence it was observed that after filing a detailed investigation report wherein the provisions of the Explosive Substances Act and Arms Act were not applied by the NIA against the appellant, it was only during the course of the arguments the prosecution was trying to link the appellant with the Scorpio vehicle-laden with gelatin sticks. The said observations made by the High Court would in fact indicate that in the present facts, as against the role assigned to the appellant, invoking of the UAPA would pale into insignificance and the rigor of that law would not be applicable at this stage while considering the application of the appellant for bail.

8. The further allegation against the appellant is with regard to his role in the murder of Mansukh Hiren. The circumstance as alleged against the appellant has be